The Queen on the application of Mr Peter Gaskin v LB Richmond Upon Thames (2018) EWHC 1996 (Admin) (Not on Bailli yet. Report here.)
We didn’t report round 1 of this, probably because it was so completely inconclusive, but here is round 2 and a decision that will very significant for every Local Authority landlord/letting licensing scheme.
The issue was the upfront level of fees charged by LB Richmond on Thames for an HMO licence. LB Richmond maintained that the fee level could be set at a level designed to cover not only the costs of processing his application but also to contribute towards the costs of LB Richmond running its HMO licensing scheme more generally, including enforcement. Mr G, the landlord, maintained that the fee could only be set at a level covering the costs of processing the application.
Mr G was prosecuted for failing to pay the licence fee demanded and that resulted in a judicial review. The first part of the JR – dealing with domestic law – is here. Mr G mostly lost. But it resulted in an adjournment on the issue of whether there was a breach of EU law to a later hearing. This was that adjourned hearing.
The issue was whether private letting of accommodation was a service for the purposes of EU Directive 2006/123/EC. If it was, then the licence fee would be restricted to just the apportioned costs of processing the application, not the broader costs of the operation and enforcement of the licensing scheme.
The High Court found that the letting of private accommodation was provision of a service that would fall under the Directive. It was not relevant that council tax rather than business rates were paid on the property. The express exclusion of social housing from the directive indicated that other housing provision was included.
LB Richmond’s upfront licence fee was therefore unlawful
There will no doubt be an appeal. No doubt at all. This does severe damage to the fee planning and setting of many, many councils’ licensing schemes and effectively means that the upfront licensing fees cannot assist in paying for enforcement costs.
This is not to say that an appeal will be successful, just that it is inevitable.